How many Elizabeths? The case of MacCormick v Lord Advocate

Some people, mostly English, think it’s very important to say that Parliament is absolutely sovereign.

But “the principle of unlimited sovereignty of Parliament is a distinctively English principle and has no counterpart in Scottish constitutional law.” So said the President of the Inner House of the Court of Session in the case of MacCormick v Lord Advocate in 1953. I think I’ve mentioned this before, as possibly tangentially relevant to the Brexit debates. Long before the Maastricht treaty, the Treaty of Union of 1707 was – arguably – fundamental law. And he also mentioned that the current House of Commons is not an English Parliament – the English and Scots parliaments were both equally replaced by the British one, so Scottish constitutional law, in theory, was a part of its makeup just as much as English.

However today, for no particular reason, I have another interest in the case of MacCormick. Shortly after the accession of our still-reigning monarch, ie well over sixty years ago, the Crown was sued by Scottish Nationalists. MacCormick “and another”  were associated with the University of Glasgow, which must have been a hotbed of nationalist sympathy in the 1950s. They used the Union of 1707 to challenge the fact that the new young Queen Elizabeth was being declared “the Second”, despite the fact that there had never been a previous Queen Elizabeth in Scotland.

They lost the case, on the grounds that the Union Treaty (although it may be “fundamental law”, hence the previous comments) has nothing to do with the Queen’s right to call herself what she and her executive like.

The question, therefore, of why Elizabeth is the Second, not the First (and her uncle was Edward the Eighth, not the Second) was not decided.

My father, who was a mine both of information on various topics, and of interesting theories, had a view on why this was. I thought this was unique to him, but have learned to my disappointment that it can be traced to Winston Churchill.

In 1603 the King of Scotland became the King of England as well. But the countries remained in theory separate entities, so he was James I (of England) and VI (of Scotland.)

(I digress again to say that the life and violent death of James I of Scotland deserve to be better known. It’s a great story, involving soothsaying, tennis, tragic irony and heroic women.)

Ahem. James’ son and in due course grandson were Charles I and Charles II respectively, because neither England nor Scotland had had a King Charles before. It gets a bit muddly with William and Mary (William the Third and Second? Mary the Second and Second?), but constitutionally they were a bit muddled anyway. In 1707 came the Union of the Parliaments, and thereafter monarchs only had one number, because it was one country.

The number, according to Churchill, quite reasonably, was the higher one of the two. There had been six previous Edwards of England and none of Scotland, so Edward VII in 1901. There was one previous Elizabeth of England and none of Scotland, so Elizabeth II.

Makes perfect sense.

The king with the briefest reign this century was Edward VIII. And his first name was indeed Edward, although he was known in his close family by his second name, David.

But (my father and possibly Churchill would have said) he couldn’t have been crowned David. Because Scotland had already had two King Davids and England none, so if the above rule were right, he’d have had to be King David the Third.

Imagine what the Tory party would have made of that. In theory the higher number should win, but practically and politically…

(I wondered if there was a similar issue with George VI, known to his family as Bertie. Should he really have been Robert IV? But no, “Bertie” here is short for Albert.)

So this may be yet another consideration for the Royal Family, when they choose names. William is OK, Stephen would be OK, but don’t under any circumstances call your son Malcolm.  Or Constantine.

Love from the PPI Blogger

PS As suggested to me by a follower of this blog, I have just ordered “Prince of Thorns” by Mark Lawrence from the library. Any other suggestions for what I should be reading?

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